Opinion
No. 04-15-00415-CR
05-04-2016
Terrill Carl ADAMS, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 2nd 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 14-2102-CR-A
Honorable W.C. Kirkendall, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Jason Pulliam, Justice VACATED IN PART; AFFIRMED IN PART
Terrill Carl Adams appeals his two convictions for burglary of a habitation, asserting they amount to multiple punishments for the same criminal conduct in violation of the double jeopardy clause. We agree and vacate the judgment on Count 2 for burglary of a habitation with intent to commit or commission of injury to an elderly individual, and affirm the judgment on Count 1 for burglary of a habitation with intent to commit or commission of kidnapping.
ANALYSIS
Adams was indicted for aggravated robbery, one count of burglary of a habitation with intent to commit or commission of kidnapping, and a second count of burglary of a habitation with intent to commit or commission of injury to an elderly individual, all arising out of the same criminal transaction that occurred on June 21, 2012. See TEX. PENAL CODE ANN. §§ 29.03, 30.02(a)(1), (3) (West 2011). A jury convicted him on all three counts and he was sentenced to twenty years' imprisonment on the aggravated robbery and fifteen years' imprisonment on each burglary count, with the sentences running concurrent.
Adams' sole issue on appeal is that the two burglary convictions constitute multiple punishments for the same offense in violation of the Double Jeopardy Clause. See U.S. CONST., amend. V; TEX. CONST., art. I, § 14; see also Stephens v. State, 806 S.W.2d 812, 815 (Tex. Crim. App. 1990) (scope of protection under state and federal constitutions is the same). The Double Jeopardy Clause protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969); Lopez v. State, 108 S.W.3d 293, 295-96 (Tex. Crim. App. 2003). The scope of the Double Jeopardy Clause's protection against multiple punishments depends on the allowable unit of prosecution for the offense. Ex parte Cavazos, 203 S.W.3d 333, 336 (2006). The gravamen of a burglary offense is the entry into the structure without the owner's effective consent and with the requisite mental state, and the offense is complete once the unlawful entry is made. Id. at 337; see DeVaughn v. State, 749 S.W.2d 62, 65 (Tex. Crim. App. 1988); see also Richardson v. State, 888 S.W.2d 822, 824 (Tex. Crim. App. 1994). Because burglary is a crime against property, rather than against each complainant, the allowable unit of prosecution for burglary is the unlawful entry, and not the number of complainants within the habitation. Ex parte Cavazos, 203 S.W.3d at 337. The State concedes, and the record reflects, that there was only a single unlawful entry in this case; therefore, Adams' convictions for two burglary offenses based on the number of complainants constitute multiple punishments for the same offense and violate double jeopardy. See id.; see also Caballero v. State, 292 S.W.3d 152, 156 (Tex. App.—San Antonio 2009, pet. ref'd).
A claim of double jeopardy may be raised for the first time on appeal if (1) the undisputed facts show that the double jeopardy violation is clearly apparent on the face of the record, and (2) enforcement of the usual rules of procedural default serves no legitimate state interest. Garfias v. State, 424 S.W.3d 54, 57-58 (Tex. Crim. App. 2014). As the State concedes, those requirements are met here. --------
When a defendant is convicted of two offenses that are the "same" for double jeopardy purposes, the appropriate remedy is to retain the conviction for the "most serious" offense and vacate the other conviction. Ex parte Cavazos, 203 S.W.3d at 337. The "most serious" offense is the offense for which the greatest sentence was assessed. Id. at 338. Here, the sentences are the same for both burglary convictions. When the sentences are the same, the Court of Criminal Appeals has looked at other parts of the judgment, such as whether restitution or a fine was imposed or a deadly weapon finding was made, in determining which offense is the "most serious." See id. at 338-39 (additional punishment in the form of restitution made one offense "more serious" than the other for double jeopardy purposes); see also Villanueva v. State, 227 S.W.3d 744, 749 (Tex. Crim. App. 2007) (using an affirmative finding of use of a deadly weapon to determine the most serious offense). The judgment here, however, provides no guidance in determining the "most serious offense" as it imposes the same 15-year sentence on each burglary count (to run concurrent), but no fine or restitution on either count, and makes no deadly weapon finding. See Evans v. State, 299 S.W.3d 138, 141 (Tex. Crim. App. 2009) (double jeopardy violation occurs even when "multiple punishments" sentences are run concurrently).
When there is no difference in the punishments assessed, courts in the post-Cavazos era have considered the degree of felony in determining which offense is the most serious. See Bigon v. State, 252 S.W.3d 360, 373 (Tex. Crim. App. 2008) (Court of Criminal Appeals used the degree of felony to determine the most serious offense where the sentences were identical); see also White v. State, 395 S.W.3d 828, 832-33 (Tex. App.—Fort Worth 2013, no pet.) (utilizing degree of offense to determine which of two burglary of a habitation convictions was the most serious offense). Here, both of the burglary convictions are first degree felonies. See TEX. PENAL CODE ANN. § 30.02(d) (West 2011) (providing that a burglary is a first degree felony if the premises entered are a habitation and any party entered the habitation with intent to commit or committed a felony other than felony theft). Looking to the underlying felony alleged in each burglary count, the underlying felony in Count 1 is kidnapping, which would be a third degree felony if charged separately, and the underlying felony in Count 2, bodily injury to an elderly individual, would also be a third degree felony if charged separately. See TEX. PENAL CODE ANN. §§ 20.03(c), 22.04(a)(3), (f) (West 2011 & Supp. 2015).
When faced with the same degree of offense and identical punishments, courts have considered other factors in determining the most serious offense for double jeopardy purposes. See, e.g., Bien v. State, No. 11-14-00057-CR, 2016 WL 859378, at *4 (Tex. App.—Eastland Mar. 3, 2016, no pet. h.) (determining the "most serious" offense was the "3g offense" under Code of Criminal Procedure article 42.12, § 3g (a)(1), which affects parole eligibility); Cooper v. State, No. 03-10-00348-CR, 2014 WL 3410587, at *1 (Tex. App.—Austin July 11, 2014, no pet.) (mem. op., not designated for publication) (where the offenses were equally "serious" based on identical punishments and degree of offense, the court retained the first counts listed in the indictment, reasoning "it is the second convictions for aggravated robbery against each victim that subjected appellant to double jeopardy"); Burwell v. State, No. 11-12-00351-CR, 2014 WL 6603422, at *2 (Tex. App.—Eastland Nov. 20, 2014, pet. ref'd) (mem. op., not designated for publication) ("Although the Court of Criminal Appeals has not addressed this issue directly, it has indicated that, all punishment factors being equal, the conviction that should be retained is generally the offense named on the first jury verdict form . . . [which] is generally the offense charged in count one of the indictment.") (citing Ex parte Cavazos, 203 S.W.3d at 339 n.8). Here, the burglary of a habitation with intent to commit kidnapping is charged in Count 1 of the indictment, and is the "offense named on the first jury verdict form." In addition, we note that, in part, the "most serious offense" test attempts to take into account which conviction the prosecutor would choose to retain. See Bigon, 252 S.W.3d at 373. In his brief, Adams states the State should be permitted to elect which burglary offense to retain. In its brief, the State elects to retain the conviction for burglary of a habitation with intent to commit kidnapping, although it mistakenly states that, if charged separately, kidnapping is a second degree felony.
Based on the above analysis, we conclude that under Bigon the "most serious offense" is the burglary of a habitation with intent to commit or commission of kidnapping under Count 1. We will therefore retain that conviction. Accordingly, because Adams' convictions for two burglary offenses based on a single unlawful entry constitute multiple punishments in violation of double jeopardy, we vacate the judgment of conviction on Count 2 for burglary of a habitation with intent to commit or commission of injury to an elderly individual, and affirm the judgment of conviction on Count 1 for burglary of a habitation with intent to commit or commission of kidnapping. Adams did not challenge his conviction for aggravated robbery (Count 3) and that judgment of conviction therefore stands.
Rebeca C. Martinez, Justice DO NOT PUBLISH